Filed 9/13/23 P. v. Edwards CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

TONY RAY EDWARDS,

Defendant and Appellant.

 D080809

 (Super. Ct. No. SCE392534)

APPEAL from a judgment of the Superior Court of San Diego County, 

Herbert J. Exarhos, Judge. Affirmed. 

Andrea S. Bitar, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. 

Swenson and James H. Flaherty III, Deputy Attorneys General, for Plaintiff 

and Respondent. 

Defendant Tony Edwards faced a potential indeterminate sentence of 

25 years to life after a jury convicted him of first degree burglary because 

several aggravating factors, including two prior serious felony strikes, were 
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found to be true beyond a reasonable doubt. At sentencing, the trial court 

discussed mitigating and aggravating factors and decided that, while 

25 years to life was too long, Edwards should spend a significant time in 

prison. Without objection from defense counsel, the trial court asked the 

parties to work backwards to craft a sentence that would add up to the length 

of time it wanted. Ultimately, the trial court imposed the upper term and 

sentenced Edwards to 19 years and 8 months in prison. 

Edwards appeals the sentence because, in his view, the trial court did 

not comply with the requirements of Penal Code section 1170, 

subdivision (b)(2) for exceeding the middle term. We affirm the judgment for 

two reasons. First, Edwards forfeited his objection to the sentencing 

procedure because he raised it for the first time on appeal. Second, the trial 

court properly exercised its discretion under section 1170 when it found that 

aggravating circumstances justified the upper term. 

I.

A jury found Edwards guilty of first degree burglary of a dwelling 

occupied by a person other than an accomplice. (Pen. Code, §§ 459, 460,

subd. (a), 667.5, subd. (c)(21).) The trial court then oversaw a proceeding in 

which it found several aggravating factors to be true beyond a reasonable 

doubt: Edwards (1) committed the offense while out on bail; (2) committed 

the offense while on probation or parole; (3) committed “numerous” crimes of 

“increasing seriousness”; (4) served two prior prison terms; and (5) was 

previously convicted of two serious felony prior strikes, one in 1998 for instore robbery (Pen. Code, § 211) and one in 2019 for arson of property (Pen. 

Code, § 451, subd. (d)). 

The two prior strikes required the trial court to impose a five-year 

enhancement for each prior strike and, for the current conviction, an 
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indeterminate term of 25 years to life. (Pen. Code, § 667, subds. (a)(1), 

(e)(2)(A)(ii).) The trial court, however, thought “25 to life” was “too much.” It 

thus eliminated the 1998 prior strike for sentencing purposes because that 

robbery occurred so long ago and the circumstances of the offense did “not 

rise to the level that would justify an indeterminate sentence.” The trial 

court struck the corresponding five-year enhancement for the same reason. 

Without that prior strike and enhancement, Edwards faced a determinate 

term of “around [ ] 26 years maximum.”

At sentencing, in addition to striking one of Edwards’ prior strikes, the 

trial court considered mitigating and aggravating factors. The trial court 

sympathized with Edwards’ “horrible” childhood. It also found “significant” 

that Edwards did not use weapons or violence during any of his thefts and 

gave him “credit” for committing them in daytime, which reduces the 

likelihood of anyone being home. At the same time, the trial court deemed

Edwards a “career thief” and expressed that “society needs to be protected 

from him [for] a significant period of time.” 

To decide the length of time, the trial court asked both sides for 

“numbers.” When the prosecutor proposed the upper term, the trial court 

found that it could depart upwards because “aggregates have been found to 

be true.” The trial court eventually asked the parties to “[d]o the math” to 

create a determinate sentence of 20 years. The court acknowledged that it 

had never “done a sentence where you’re working backwards from the 

numbers,” but decided that the circumstances warranted doing so here. 

Edwards’ counsel never objected to this procedure. 

In the end, the trial court selected the upper term, which, together with 

the remaining prior strike and other enhancements, resulted in a total 

sentence of 19 years and 8 months. 
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II.

On appeal, Edwards challenges the “manner in which the trial court 

reached [his] sentence.” He contends that the court abused its discretion 

because it “picked a (seemingly arbitrary) number of years and worked 

backward” rather than starting with the middle term. 

The People argue that Edwards forfeited his sentencing challenge and, 

in any event, the trial court did not err when it imposed the upper term. We 

agree. 

A.

“[C]omplaints about the manner in which the trial court exercises its 

sentencing discretion and articulates its supporting reasons cannot be raised 

for the first time on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356

(Scott).) Although Edwards did not lodge this objection with the trial court, 

he argues that he may do so now because the trial court imposed an 

unauthorized sentence. 

We conclude that Edwards forfeited this issue. An unauthorized 

sentence is one that “could not lawfully be imposed under any circumstance 

in the particular case.” (Scott, supra, 9 Cal.4th at p. 354.) Edwards’ 19-year, 

8-month sentence was not unauthorized because it fell below the maximum 

sentence and, “assuming aggravation outweighed mitigation,” the trial court 

could lawfully impose the upper term. (Id. at p. 355.) Consequently, 

Edwards cannot challenge the “method” the trial court used to reach his 

sentence for the first time on appeal. 

B.

Even if Edwards preserved this issue for appeal, we would still affirm 

the judgment. 
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We review the trial court’s sentencing choice for abuse of discretion.

(People v. Sandoval (2007) 41 Cal.4th 825, 847.) Edwards bears the burden 

to show that the sentencing decision was “so irrational or arbitrary that no 

reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 

367, 376-377.) 

We conclude that Edwards has not met his burden. Relevant here, the 

court may impose a sentence that exceeds the middle term “only when there 

are circumstances in aggravation of the crime that justify” the higher term. 

(§ 1170, subd. (b)(2).) Edwards asserts that this section requires the court to 

expressly “start with the midterm” before it can depart upward. But the 

sentencing law is not so rigid. It sets out the standard for an upper-term 

sentence without detailing the exact steps or words that a trial court must 

use to get there. Here, even if “unorthodox,” as Edwards claims, the trial 

court’s methodology was not arbitrary. The record reflects that the trial court 

weighed mitigating and aggravating factors and properly exercised its 

discretion to impose the upper term as required under section 1170, 

subdivision (b)(2). 

III.

We affirm the judgment. 

CASTILLO, J.

WE CONCUR:

BUCHANAN, Acting P. J.

RUBIN, J.